Why this former inmate has been excluded from a solitary confinement lawsuit

Al Hickey is far from the prison walls of Her Majesty's Penitentiary but he still distinctly remembers the time he spent in solitary confinement in the basement of the St. John's correctional facility more than two decades ago.

"They put me in the hole for two and a half weeks with another guy and didn't let us out once — not once — in two and a half weeks," Hickey said in a recent interview.

Hickey, 43, describes staying in a small cell equipped with a concrete slab, a thin mattress and toilet, without access to a shower for the entirety of his time there. 

He doesn't remember how he landed there, but said the double-bunking wasn't done out of necessity.

"There's no room to walk, there's no room to move. And there was lots of cells open. They didn't need to double-bunk us in there, but [the guards] would do it to cause fights so they could entertain themselves."

Hickey couldn't recall the exact year he spent in the provincial men's jail but court records show a period of incarceration in 1998, when he was 19.

Class-action cutoff

A class-action lawsuit brought forward by former inmates that targets the provincial government over the use of solitary confinement from the 1990s to present day was certified last October.

But when Hickey called to join the lawsuit, after seeing a CBC story in July, he was told he had missed the cutoff.

• More than 100 former inmates come forward for solitary confinement lawsuit

In Newfoundland and Labrador, legislation dictates that a non-resident has to "opt in" to a class action within a timeline set out by the Supreme Court where the action is certified.

In this case, there was a 90-day time limit for people outside the province to indicate they want to join.

Jasminka Kalajdzic, an associate professor at the University of Windsor's faculty of law, said most provinces in Canada use the opt-out process.

That means a person who qualifies for a certain class-action lawsuit is automatically included, even if they don't know it exists. 

Newfoundland and Labrador and New Brunswick, Kalajdzic said, do things differently. 

Suing alone 'isn't for everybody'

There are benefits and drawbacks to both, she said. 

"If it's an opt-out system, because they didn't remove themselves, now they're stuck. They have no choice. They can't control their own litigation [or] start their own lawsuit," she said.

"If you're automatically in but you don't know about the case, it means that you may have lost all rights to compensation because the deadline's passed to make a claim, and you also lost your rights to litigate."

However, in Hickey's case, he is excluded, and the only option would be to launch his own lawsuit — which has its own challenges.

"Suing individually isn't for everybody. It takes a lot of wherewithal, patience," Kalajdzic said.

"Sometimes the publicity is something that people shy away from."

Ideally, she said all provinces would have an opt-out system but would require a more concerted effort to alert the public about the litigation. 

Trevor Farrow, a professor at Osgoode Hall Law School, said it would be beneficial for the legislation to change in Newfoundland and Labrador to become consistent with the rest of Canada.

"It's a good thing because even though we still operate provincially, there's a lot of stuff that happens across provincial borders," Farrow said.

"And so the more things are unified, the simpler and more efficient they can be and the more predictable."

Farrow and Kalajdzic say creating a system that's clear of confusion is key in helping people understand class-action lawsuits and their rights.

I found beauty in my solitude. Don't get me wrong, I know how beautiful nature is, but I've missed out on the beauty of humanity.- Al Hickey

A spokesperson for the Newfoundland and Labrador Department of Justice and Public Safety said no amendments to the Class Actions Act are being considered at this time. 

Speaking from British Columbia, Hickey said he's glad the issue of solitary confinement is getting attention.

"If you want to throw somebody in a prison and treat them like garbage and basically turn it into a fight club with shanks and all kinds of horrific violence, well, be prepared to have that person living next door to you," he said.

In retrospect, Hickey believes his short time, albeit short, in solitary confinement helped changed the trajectory of his life. 

Throughout adulthood, Hickey has been drawn to isolation, working on trap lines in northern Alberta and gold prospecting in the Yukon.

"Now I live on a boat out on the islands and I usually just do my best to stay away from people. And I'm starting to realize now that that's a problem," Hickey said.

"I found beauty in my solitude. Don't get me wrong, I know how beautiful nature is, but I've missed out on the beauty of humanity."

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